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SPEECH 



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HOI. CHARLES S^"M^ 



OF MASSACHUSETTS, 



ON 



VriRITIME RIGHTS; 



1M 



DBLIVERED 



IN THE SENATE OF THE UNITKD STATES. JANUARY 9, 1862. 




S. A. 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
1862. 



l\'' 



SPEECH. 



The hour having arrived for the consideration of the spe- 
cial order, tlie Senate proceeded to consider tlie moftrmof 
Mr. Sumner, to refer to tlie Coinniittee on Foreign Rela- 
tions tlio message of the President, received on the 6th 
instant, relative to the recent removal of certain citizensof 
the United States from the British mail steamer Trent, by 
order of Captain Wilkes, in command of the United States 
war steamer San Jacinto. 

Mr. SUMNER. Mr. President, every princi-- 
pie of irtternational law, when justly and authori- 
tatively settled, becomes a safeguard of peace and 
a landmark of civilization. It constitutes a part 
of that code which is the supreme law, above all 
mu nici pal laws, binding the whole Com mo nweallii 
of Nations. Such a settlement maybe by a general 
congress of nations, as at Munster, Vienna, or 
Paris; or it may be through the general accord of 
treaties; or it maybe by a precedent established 
under such conspicuous circumstances, with all 
nations as assenting witnesses, that it shall at once 
beco me in itsel fa commanding rule of international 
conduct. Especially is this the case, if disturb- 
ing pretensions long maintained to the detriment 
of civilizalion, are practically renounced by the 
Power whicii has maintained them. Without any 
congress or treaties, such a precedent has been 
established. 

Sucli a precedent ought to be considered and 
understood in its true character. In undertaking 
to explain it, I stiail speak for myself alone; but 
I shall speak frankly, according to the wise free- 
dom of public debate, and the plain teachings of 
history on the question involved, trusting sin- 
cerely that what I say may contribute something 
to elevate the honest patriotism of the country, and 
perhaps to secure that tranquil judgment which 
will render this precedent the herald, if not the 
guardian, of international harmony. 

Two old men and two younger associates, re- 
cently taken from the British mail packet Trent 
on the higli seas by order of Captain Wilkes of 
the United Slates Navy, and afterwards detained 
in custody at Fort Warren, have been liberated 
and placed at the disposition of the British Gov- 
ernment. This has been done at the instance of 
that Government, courteously conveyed, and 
founded on the assumption that the original cap- 



ture of the.se men was an act of violence wiiich 
was an affront to the British flag, and a violation 
of international law. This is a simple outline of 
the facts. But in order to appreciate the value of 
this precedent, there are other matters which must 
be brought into view. 

These two old men were citizens of the United 
States, and for many years Senators. Arrogant, 
audacious, persistent, perfidious — one was the 
author of the fugitive slave bill, and the other 
was the chief author of the fillibustering system 
which has disgraced our national name and dis- 
turbed our national peace. Occupying places of 
trust and power in the service of their country, 
they conspired against it, and at last the secret 
traitors and conspirators became open rebels. The 
present rebellion, now surpassing in proportions 
and also in wickedness any rebellion in history, 
was from the beginning quickened and promoted 
by their untiring energies. That country to which 
they owed love, honor, and obedience, they be- 
trayed and gave over to violence and outrage. 
Treason, conspiracy, and rebellion, each in suc- 
cession, liave acted through them. The incalcu- 
lable expenditures which now task our national 
resources — the untold derangement of affairs not 
only at home but also abroad — the levy of armies 
almost without an example — the devastation of 
extended spaces of territory — the plunder of peace- 
ful ships on the ocean, and the slaughter of fellow- 
citizens on the murderous battle-field; such are 
some of the consequences proceeding directly from 
them. To carry forward still further the gigantic 
crime of which they were so large a part, these two 
old men, with their two younger associates, stole 
from Charleston on board a rebel steamer, and, 
under cover of darkness and storm, running the 
surrounding blockaae and avoiding the cruisers in 
that neighborhood, succeeded in reaching tlie. neu- 
tral island of Cuba, where, with open display nnd 
the knowledge of I he British consul, they iinbtticed 
on board the British mail packet theTi' ■ :. jound 
for St. Thomas, whence they were to ei!:^ark for 
England, in which kingdom one >•{ lluiii was to 
play the part ofembassador of thi: ri 'liion, while 
the other was to play the same part in France. 
The original treason, conspiracy, and rebellion of 



which they were so heinously guilty, were all 
continued on this voyage, which became a pro- 
longaiion of the original crime, destined to still 
further excess, through their embassadorial pre- 
tensions, which, it was hoped, would array two 
great nations against the United States, and enlist 
tliem openly in behalf of an accursed slaveholding 
rclii'llion. While on their way, the embassadors 
were arrested by Captain Wilkes, of the United 
Stales steamer San Jacinto, an accomplished offi- 
cer, already well known by his scientific explora- 
tions, who, on this occasion, acted without in- 
structions from his Government. If, in this arrest, 
lie forgot for a moment the fixed policy of the 
Republic, which has been from the beginning like 
a frontlet between the eyes, and transcended the 
law of nations, as the United States have always 
declared it, his apology must be found in the pa- 
triotic impulse by which he was inspired, and the 
British examples which he could not forget. They 
were the enemies of his country, embodying in 
themselves the triple essence of worst enmity — 
treason, conspiracy, and rebellion; and they wore 
a pretended embassadorial character, which, as he 
supposed, according to high British authority, 
rendered them liable to be stopped. If, in the 
ardor of an honest nature. Captain Wilkes erred, 
he might well say: 

'• Who can be wise, amazed, temperate, and furious. 
Loyal and neutral in a moment.' No man. 
Tlie expedition of my violent love 
Outfan the pauser reason. 

" Who could refrain 
That had a heart to love, and in that heart 
Courage to make liis love known.'" 

If this transaction be regarded exclusively in the 
lightof British precedents; if we follow the seeming 
authority of the British admiralty, speaking by 
its greatest voice; and esfiecially if we accept the 
oft-repeated example of British cruisers, upheld 
by the British Government against the oft-repealed 
protests of the United States, we shall not find it 
difficult to vindicate it. The act becomes ques- 
tiotiablc only when brought to the touchstone of 
these liberal principles, which, from the earliest 
times, the American Government has openly 
avowed and sought to advance, and which other 
European nations have accepted with regard to 
the sea. Indeed, Great Britain cannot complain 
e.xcent by now adopting those identical principles; 
and should we undertake to vindicate the act, it 
can be done only by repudiating those identical 
principles. Our two cases will be reversed. In 
the struggle between Laertes and Hamlet, the two 
combatants exchanged rapiers; so that Hamlet 
was armed with the rapier of Laertes and Laertes 
was armed with the rapier of Hamlet. And now 
on this sensitive question a similar exchange has 
occurred. Great Britain is arijied with American 
principles, while to us is left only those British 
principles which, throughout our history, have 
been constantly, deliberately, and solemnly re- 
jected. 

Earl Russell, in his dispatch to Lord Lyons, 
communicated to Mr. Seward, contents himself 
by saying that " it appears that certain individuals 
have been forcibly taken from on board a British 
•vessel, the ship of a neutral Power, tchile such ves- 



sel was pursuing a lawful and innocent voyage — an 
act of violence which was an affront to the British 
flag, and a violation of international law." Here 
is a positive assertion that the ship, notoriously 
having on board the rebel emissaries, was pursu- 
ing a lawful and innocent voyage; but there is no 
specification of the precise ground on which the 
act in question is regarded as a violation of inter- 
national law. Of course, it is not an aflVont; for 
an accident can never be an affront to an individ- 
ual or to a nation. 

But public report, authenticated by the concur- 
ring testimony of various authorities, English and 
continental, forbids us to continue ignorant of the 
precise ground on which this act is presented as 
a violation of international law. It was admitted 
that a United States man-of-war, meeting a Brit- 
ish mail steamer beyond the territorial limits of 
Great Britain, might subject her to visitation and 
search; also that the United States ship of war 
might put a prize crew on board the British 
steamer, and carry her off to a port of the United 
Slates for adjudication by a prize court there; but 
that she would have no right to remove the emis- 
saries, who were not apparently officers in the 
military or naval service, and carry them off as 
prisoners, leaving the ship to pursue her voyage. 
Under the circumstances, in the exercise of a 
belligerent right, the British steamer, with all on 
board, might have been captured and carried off; 
but accoiding to the Britisli law officers, on whose 
professional opinion the British cabinet has acted, 
the whole proceeding was vitiated by the failure 
to take the packet into port for condemnation. 
This failure has been the occasion of much unpro- 
fessional objurgation; and it has been emphatically 
repeated that it was impossible to consent that the 
custody of the individuals in question should be 
determined by a Navy officer on his quarter-deck, 
so as to supersede the adjudication of a prize court. 
This has been confidently stated by an English 
writer, assuming to put the case for his Govern- 
ment, as follows: 

" It is not to tl'.e right of search that we object, iut to the 
following seizure wilhout process of law. What we deny is 
the right of a natal officer to stand in place of a prize court, 
and adjudicatr, swoid in hand, with a sic volo sic jubeo on 
the very deck wliich is a part of our territory." 

Thus it appears that the present complaint of 
the British Government is not founded on the 
assumption by the American war steamer of the 
belligerent right of search; nor on the ground that 
this right was exercised on board a neutral vessel 
between two neutral ports; nor that it was exer- 
cised on board a tiiail steamer, sustained by a sub- 
vention from the Crown, and officered in i)art 
from the royal navy; nor that it was exercised in a 
case where the penalties of contraband could not 
attach; but it is founded simply and precisely on 
the idea that persons other than ajiparent officers 
in the military or naval service, cannot be taken 
out of a neutral ship at the mere will of the officer 
who exercises the right of search, and without any 
form of trial. Therefore, the law of nations has 
been violated, and the conduct of Captain Wilkes 
must be disavowed, while men, who are traitors, 
conspirators, and rebels, all in one, are allowed 
to go free. 



s 



Surely, thnt criminals, tliongli dyed in guilt, 
should go free, is better than thnt the law of na- 
tions should be violated, especially in any rule by 
which war is restricted and the mood of peace is 
enlarged; for the law of nations cannot be violated 
without overturning the protection of the innocent 
as well as the guilty. On this general princijile 
there can be no question. It is but an illustration 
of thnt important maxim, recorded in the Latin of 
Fortescu'^ " Better that manvguilty should escape 
than one innocent man should suffer," with this 
difference, that in the present case four guilty men 
escape, while the innocent everywhere on the sea 
obtain new security. And this security becomes 
more valuable as a triumph of civilization, when 
it is considered that it v/as long refused, even at 
the cannon's mouth. 

Do not forget, sir, that the question involved in 
this controversy is stricthj a question of law — pre- 
cisely like a question of trespass between two 
neighbors. The British cabinet began proceed- 
ings by taking the opinion of their law advisers, 
precisely as an individual begins proceedings in 
a suit at law by taking the opinion of his attor- 
ney. To make such a question a case of %oar, or 
to suggest that war is a proper mode of deciding 
it, is simply to revive, in colossal proportions, the 
exploded Ordeal by Battle, and to imitate those 
dark ages when such proceeding was openly de- 
clared to be the best and most honorable mode of 
deciding even an abstract point of law. " It was 
a matter of doubt and dispute," says a medifeval 
historian, " whether the sons of a son ought to 
be reckoned among the children of the family, 
and succeed equally with their uncles, if their 
father happened to die while their grandfather was 
alive. An assembly was called to deliberate on 
this point, and it was the general opinion that it 
ought to be remitted to the examination and de- 
cision of judges. But the emperor, following a 
better course, and desirous of dealing honorably 
with his people and nobles, appointed the matter 
to be decided by battle between two champions." 
In similar spirit has it been latterly proposed, 
amidst the amazement of the civilized world, to 
withdraw the point of law, now raised by Great 
Britain, from peacefuladjudication and submitit to 
Trial by Combat. But the irrational anachronism 
of such a proposition becomes more flagrant from 
the inconsistency of the party which makes it; 
for it cannot be forgotten that, in times past, on 
this identical point of law, Great Britain persist- 
ently held an opjiosite ground from that which she 
now takes. Perhaps hereafter, in a happier mo- 
ment, this exacting Power may be disposed to 
regret the swiftness with which she undertook to 
gird herself for such an unnatural combat, on a 
mere point of law, with a friendly nation already 
struggling against domestic enemies — especially, 
as impartial history must record that her heavy 
sword was to be thrown into the scales of sla- 
very. 

The British complaint seems to have been nar- 
rowed down to a single point; but it is not to be 
disguised that there arc yet other points on which, 
had the ship been carried into port for adjudica- 
tion, controversy must have arisen. Not to omit 
anything important, let me say that the four fol- 



lowingpoints, among others, have been presented 
in the case: 

1. That the seizure of the rebel emissaries, 
without taking the ship into port, was wrong, 
inasmuch as a J^avy officer is not entitled to substi- 
tute himself for a judicial tribunal. 

2. That had the ship been carried into port, it 
would not have been liable on account of the rebel 
emissaries, inasmuch as neutral ships are free to 
carry all persons not apparently in the military 
or naval service of the enemy. 

3. Arc dispatches contraband of war, so as to 
render the ship liable to seizure? 

4. Are neutral ships, carryingdispatches, liable 
to be stopped between two neutral ports? 

These matters I shall consider in their order, 
giving special attention to the first, which is the 
pivot of the British complaint. If in this discus- 
sion I shall expose grievances which it were better 
to forget, be assured it is from no willingness to 
revive the buried animosities they once so' justly 
aroused, but simply to exhibit the proud position 
on this question which the United States early and 
constantly maintained. 

A question of international law should not be 
presented on any mere ai-gumentum ad hominem. 
It would be of little value to show that Captain 
Wilkes was sustained by British authority and 
practice, if he were condemned by international 
law as interpreted by his own country. It belongs 
to us now, nay, let it be our pride, at any cost of 
individual prepossessionsor transitory prejudices, 
to uphold that law in all its force, as it was often 
declared by the best men in our history, and illus- 
trated by national acts; and letus seize the present 
occasion to consecrate its positive and unequivo- 
cal recognition. In exchange for the prisoners 
set free, we receive from Great Britain a practical 
assent, too long deferred, to a principle early pro- 
pounded by our country, and standing forth on 
every page of our history. The same voice which 
asks for their liberation, renounces in the same 
l)reath an odious pretension, for whole genera- 
tions the scourge of peaceful commerce. 

Great Britain throughout her municipal history 
has practically contributed to the establishment of 
freedom beyond all other nations. There are at 
least seven institutions or principles which she 
has given to civilization: first, the trial by jur^ . 
secondly, the writ of habeas corjnis; thirdly, t' <■ 
freedom of the press; fourthly, bills of ri^ii— • 
fifthly, the representative system; sixt'^ly, ' '' 
rulesand orders ofdebate,constitutingpa. ' un^''^".^' 
ary law; and seventhly, the principle t'lai f-lie air 
is too pure for a slave to breathe — I .g- "?^ ^' 
clarcd and first made a reality by Bri isi" '.-'W- ^^ 
other nation can show such peac lu'' triumphs. 
But while thus entitled to our gr.H!' ""t^ 'O'" gio>"'- 
ous contributions to municipal i.i v'-. w*j U\vn with 
dissent and sorrow from mi I' \\'iich she has 
sought to fasten upon internet! ^'"'*^1 'aw. In nau- 
nicipal questions, Gretit Pnt-^i'i arew in-spiration 
from her own native com m"" jaw, which was 
instinct with freedom: u.-^ especially in maritime 
questions arising unde- <••'« '^w of nations this 
Power seems to hav^-^ «c'ed ontlmt obnoxious 
principle of the Ronxi"" 'aw, positively discarded 
in municipal quest^^ons, Q,uod prtncipi plactiil kgis 



6 



vigoremhabet, and too often, under thisinspiration, 
to have imposed upon weaker nations her own 
arbitrary will. The time lias been when she pre- 
tended to sovereignty over the seas surrounding 
the British isles, as far as Cape Finisterre to the 
south, and Vanstaten in Norway to the north. But 
driven from tiiis Princely pretension, other preten- 
sions, less local but hardly less offensive, were 
avowed. The boast of " Rule, Britannia, rule the 
waves," was practically adopted by British courts 
of admiralty, and universal maritime rights were 
subjected to the special exigencies of British inter- 
ests. In the consciousness of strength, and with a 
navy tiiat could not be opposed, this Power has 
put chains upon the sea. 

Tlie commerce of the United States, as it began 
to whiten the ocean, was cruelly decimated by 
these arbitrary pretensions. American ships and 
cargoes, while, in the language of Earl Russell, 
" pursuing a lawful and innocent voyage," suf- 
fi-redfrom the British admiralty courts more than 
from rock or tempest. Shi|)wreck was less fre- 
quent than confiscation; and when it came, it was 
easier to bear. But the loss of property stung 
less than the outrage of impressment, by which 
foreigners, under the protection of the American 
flajj;, and also American citizens, without any 
form of trial, and at the mere mandate of a navy 
officer, who for the moment acted as a judicial 
tribunal, were dragged away from the deck which 
should have been to them a sacred altar. This 
outrage, which was feebly vindicated by the mu- 
nicipal claim of Great Britain to the services of 
her own subjects, was enforced arrogantly and 
perpetually on the high seas, where municipal 
law is silent and international law alone prevails. 
The belligerent right of search, derived from in- 
ternational law, was employed for this piu'pose, 
and the cpiarter-deck of every British cruiser was 
madeafloatingjudgment-seat. Thepractice began 
early, and was continued constantly; nor did it 
discriminate among its victims. It is mentioned 
by Mr. .TeiTerson, and repeated i)y a British writer 
on international law, that two nephews of Wash- 
ington, on their way home from Europe, were 
ravished from tin; protection of the American flag, 
without any judicial ])roceedings, and placed as 
common seamen under the ordinary discipline of 
British ships of war. The victims were counted 
by thousands. Lord Castlereagh himself admit- 
ted, on the floor of the House of Commons, that 
^'t inquiry instituted by the British Government 
haul iJiscQvered in the British fleet three thou- 
sand five hundred men claiming to be impressed 
Ameriu,.^i,g_ ^i our Department of State six 
thousand cases were recorded, and it was es- 
timated th.^t jjt least as many more might have 
occurred, ot- which no information had been re- 
ceived. Ihus, according to this official admission 
of the British in-iinister, there was reason to be- 
lieve that the qua i-tei-deck of a British man-of- 
war had been made a floating judgment-seat three 
thousand five hundre.j ti^es, while, according to 
the records of our owii State Department, it had 
been made a floating judi^,neiu-seat six thousand 
times and upwards; and e«,ch time an American 
citizen had been taken from the protection of his 
flag without any form of trial known to the law. 



If a pretension so intrinsically lawless could be 
sanctioned by precedent. Great Britain would 
have succeeded in interpolating it into the law of 
nations. 

Protest, argument, negotiation, correspondence, 
and war itself — unhappily the last reason of re- 
publics as of kings — were all employed in vain by 
the United States to procure a renunciation of this 
intolerable pretension. The ablest papers in our 
diplomatic history are devoted to this ]iurpose; 
and the only serious war in which we have been 
engaged, until summoned to encounter this rebel- 
lion, was to overcome by arms this very pretension 
which would not yield to reason. Beginning in 
the last century, the correspondence is at last 
closed by the recent reply of IMr. Seward to Lord 
Lyons. The long-continued occasion of conflict 
is now happily removed, and the pretension dis- 
appears forever — to take its place among the curi- 
osities of the past. 

But I do not content myself with asserting the 
persistent opposition of the American Govern- 
ment. It belongs to the argument, that I should 
exhibit this opposition and the precise ground on 
which it was placed — being identical with that now 
adopted by Great Britain. And here the testimony 
is complete. If you will kindly follow me, you 
shall see it from the beginning in the public life 
of our country, and in the authentic records of 
our Government. 

This British pretension aroused and startled the 
Administration of Washington, and the pen of 
IVIr. Jeflerson,his Secretary of State, was enlisted 
against it. In a letter to Thomas Pinckney, our 
minister at London, dated June 11, 1792, he said: 

"The simplest rule will be that the vessel beiii!; Ameri- 
can shall be evidence that the seamen on board her are 
such." 

In another letter to the same minister, dated 
October 12, 1792, he calls attention to a case of 
special outrage, as follows: 

" I inclose you a copy of a letter from Messrs. Blow and 
Melliaddo, merchants of Virfjinia, complainin« of the fnking 
away of their sailors on the coast of Africa by the com- 
mander of a British armed vessel. So many instances of 
lliis kind have liappencd that it is quite necessary that their 
Government should explain themselves on the subject, and 
be led to disavow and punish such conduct." — State Papers, 
vol. 3, p. .574. 

The same British pretension was put forth un- 
der the Administration of John Adams, and was 
again encountered. Mr. Pickering, at that time 
Secretary of State, in a letter to Rufus King, our 
minister at London, dated June 8, 1796, after re- 
peating the rule proposed by Mr. Jefferson, says: 

" But it will l)e an important point gained, if on the high 
seas our flag ca« protect those of whatever nation wlio shall 
saiHindcr it. And for this hinnanity, as well as interest, 
powerfully pleads." — State Papers, vol. 3, p. 574. 

And again, at a later day, during the same Ad- 
ministration, Mr. Marsiiall, afterwards the ven- 
erated Chief Justice of the United States, and at 
the time Secretary of State, in his instructions to 
Rufus King, at London , dated September 20, 1300, 
says: 

"The impressment of our seamen is an injury of very 
serious magnitude, which deeply atrects the feelings and 
the honor of the nation." * * * * "Alien 



!<e€'imen,not British subjects, engaged in our morcliant ser- 
vice, ought to be equally exempt with citizens. Britain has 
no pretext of right to their persons or to tlieir service. To 
tear tkemfrom our posscsaion is at the same time an i/isult 
and an injury. It is an act of violence for which there exists 
no palliative." — State Papers, vol. 2, p. 489. 

The same British pretension sliowed itself con- 
stantly under the Administration of Mr. Jefferson. 
Throughout the eight years of his Presidency, the 
repeated outrages of British cruisers never for a 
moment allowed it to be forgotten. Mr. Madison 
during this full period was Secretary of State, and 
none of the varied productions of his pen are more 
masterly than those in which he exposed the tyr- 
anny of this pretension. In the course of this 
discussion he showed the special hardship found 
in the fact that the sailors were taken from the 
ship at the mere will of an officer, without any 
form of judicial proceedings, and thus early pre- 
sented against the pretension of Great Britain the 
precise objection which is now adopted by her. 
Here are his emphatic words, in his celebrated 
instructions to Mr. Monroe, at that time our min- 
ister at London, dated January 5, 1804: 

" Taking reason and justice for the tests of this practice, 
il i^ peculiarly indefensible, because it deprives the dearest 
riiihts of persons of aregular trial, to which the most incon- 
siderable article of property captured on the high seas is 
entitled, and leaves the destiny to the will of an officer, 
sometimes cruel, often ignoraiit, and generally interested, 
by want of mariiicrs, in his own decisions. Whenever 
property found in a neutral vessel is supposed to be liable, 
on any ground, to capture and condemnation, the rule in 
all eases is, that the question shall not be decided by the 
captor, but be carried before a legal tribunal, where a reg- 
ular trial may be had, and where the captor himself is liable 
to damages tor an abuse of his power. Can it be reason- 
able, then, or just, that a belligerent commander who is 
Uius restricted, and thus responsible in a case of mere prop- 
erty of trivial amount, should be permitted, without recur- 
ring to any tribunal whateocr, to examine the crew of a neu- 
tral vessel, to decide the important question of their respective 
allegiances, and to carry that decision into execution by 
forcing every individual he may choose into a service ab- 
horrent to his feelings, cutting him off from his most tender 
connections, exposing his mind and his person to the most 
humiliating discipline, and his life itself to the greatest 
danger? Reason, justice, and humanity unite in protest- 
ing against so extravagant a proceeding." — State Papers, 
vol. 3, p. 84. 

Negotiations, on this principle, thus distinctly 
declared, were intrustedat London to James Mon- 
roe, afterwards President of the United States, and 
to William Pinkney, the most accomplished mas- 
ter of prize law which our country has produced. 
But they were unsuccessful. Great Britain per- 
sisted. In a joint letter dated at London, Septem- 
ber 11, 1806, the plenipotentiaries say: 

"That it was impossible that we should acknowledge in 
favor of any foreign Power the claim to such jurisdiction on 
hoard our vessels found upon the main ocean, as this sort of 
impressment implied—^ claim as plainly inadmissible in its 
principle, and derogating from the unquestionable rights of 
our sovereignty, as it was vexatious in its practical conse- 
quences." — State Papers, vol. 3, p. 134. 

In anotherjoint letter dated at London, Novem- 
ber 11, 1806, the same plenipotentiaries say: 

"The right was denied by the Britisli commissioners, 
who asserted that of their Government to seize its subjects 
on board neutral merchant, vessels on the high seas, and who 
also urged that the reliiK)Uishmentof it at this time would 
JO far to the ovirtiir<!W of their naval power, on which the 
safety of the stfitt- e^jsentially depended."— Sfaie Papers, 
vol. 3, p. 133. 



In still another letter, dated at London, April 
22, 1807, Messrs. Monroe and Pinkney say of the 
British commissioners: 

" They stated that the prejudice of the navy and of Uie 
country generally was so strongin favor of their jiretension 
that the ministry could not encounter it in a direct form ; 
and that in truth the support of Parliament could not have 
been relied on in such a ca.se."— State Papers, vol. 3, p. 160. 

The British commissioners were two excellent 
persons. Lord Holland and Lord Auckland; but 
though friendly to the United States in their 
declarations, and Liberals in politics, they were 
powerless. 

At home in the United States the question con- 
tinued to be discussed by able writers. Among 
those, whose opinions were of the highest author- 
ity, was the late President, John Adams, who 
from his retirement at duincy sent forth a pam- 
phlet, dated January 9, 1809, in which the British 
pretension was touched to the quick; and again 
the precise objection was presented which is now 
urged by Great Britain. Depicting the scene 
when one of our ships is encountered by a British 
cruiser, he says: 

"The lieutenant is to be the judge, the midshipman is 
to be clerk, and the boatswain sheriff or marshal." * * 
* * " It is impossible to figure to ourselves, in imagin- 
ation, this solemn tribunal and venerable judge without 
smiling, till the humiliation of our country conies into our 
thoughts and interrupts the sense of ridicule by the tears of 
grief or vengeance." — John Jldams-s JVorks, vol. 9, p. 322. 

At last all redress through negotiation was 
found to be impossible; and this pretension, ag- 
gravated into multitudinous tyranny, was openly 
announced to be one of the principal reasons for 
the declaration of war against Great Britain in 
1812. In his message to Congress, dated June l,of 
that year, Mr. Madison, who was now President, 
thusexposed the offensive characterof this preten- 
sion; and his words, directed against a per.sistent 
practice, are now echoed by Great Britain, in the 
single instance which has accidentally occurred: 

"Could the seizure of British subjects in such cases be 
regarded as within the exercise of a belligerent right, the 
acknowledged laws of war, which forbid an article of cap- 
tured property to be adjudged without a regular investiga- 
tion before a competent tribunal, u'OuM imperiously demaud 
the fairest trial where the sacred rights of persons were n-l 
issue. In place of such a trial, these rights are subjected to 
the will of every petty commander." — Statesman's Manital- 
vol. 1, p. 294. 

While the war was waging the subject %v as still 
discussed. Mr. Grundy, of Tennr.sscc, in the 
House of Representatives, in a report- from the 
Committee on Foreign Affairs, said: 

" A subaltern or any other officer of i-iie British navy 
ought not to be arbiter in such a case. The luierty and lives 
of American citizens ought not to depend on the will ol 
such a party."— Stete Papers, vol. 3 >»• 605. 

Such was the American ground. The British pre- 
tension was unhesitatingly j^roolaimed in the dec- 
laration of the Prince Re;;' liL, afterwards George 
IV, given at the palace u( Westminster, January 
9, 1813: 

"The President of iti' united States has, it is true, since 
proposed to Great T;i.'--.aan armistice; not, however, on 
the admission that m > cause of war hitherto relied on was 
removed; but on c ndition that Great Britain, as a prelim- 
inarv step, sbi jl.i Jo away a cause of war now brought 



8 



forward as suck for the first time, namt.'ly, that she should 
abandon Ike exercise of her undoubted right of search to 
take from ^imcrican merchant vessels British seamen, the 
natural-horn suhjects of his Majesty. 

" His Koyal Higliness can never admit that, in the exer- 
cise of the UNDOUBTKD and hitherto undisinUed ri«ht of 
searching neutral merchant vessels in time of war, the impress- 
mcTit of British seamen, when found therein, ca7i be deemed 
any violation of a neutral flas,- Neither can he admit that 
the taking of sucli seamen from on board such vessels can 
he considered by any neutral State as a hostile measure or a 
justifiable cause of war." 

The war was closed by the treaty at Ghent; but 
perversely the British pretension was not re- 
nounced. Other negrotiations in 1818, under Pres- 
ident iMonroe; in 1823, also under iVIonroe; and 
again in 1827, under John Q,uincy Adams, ex- 
pressly to procure its renunciation, were all un- 
availing. Of these various negotiations, 1 forbear 
all details: but the language of Mr. Rush, our 
minister at London, who pressed this question 
assdiuousiy for several years, beginning with 1818, 
should not be omitted. The case was never stated 
more strongly: 

"Let the steps by which the enforcement proceeds be 
attended to. A British frigate, in time of war, meets an 
American merchant vessel at sea, boards her, and, under 
terror of her guns, takes out one of the crew. The board- 
ing lieutenant asserts, and, let it be admitted, believes, tlie 
man to be a Briton. By this proceeding the rules observed 
in deciding upon any other fact where individual or na- 
tional riglits are at stake, are wholly overlooked. The lieu- 
tenant is accuser and judge. He decides uj)on his own view 
entirely. The case ends. No appeal follows. There is no 
trial of any kind. More in)portant still, there is no remedy 
Bhould it appear that a wronghas been committed." — Rushes 
Residence at the Court of London. 

At last, in 1842, at the treaty of Washington, 
Mr. Webster, calmly setting aside all idea of fur- 
ther negotiation on this pretension, and without 
even proposing any stipulation with regard to it, 
deliberately announced the principle irrevocably 
adopted by our Government. It was the princi- 
ple early announced at the beginning of the Re- 
public by Mr. Jefterson. This dispatch is one of 
the most memorable in our history, and it bears 
directly on the existing controversy when, in ex- 
posing the British pretension, it says: 

'' But the lieutenant of a man-of-war, having necessity 
for men, is apt to he a summary judge, and his deeisioHS will 
bt; quite as significant of his own wants and his own power 
'■ts nf the truth and justice of the case." — JVebster's }^'orks, 
vol. 6, p. 3-23. 

At te later day still, on the very eve of recent 
events, we find General Cass, as Secretary of 
State, in his elaborate instructions to our minis- 
ters in Europe, dated 27lh June, 1859, declaring 
principles which may properly control the pres- 
ent question. He says: 

" It is obvious, from the temper of the age, that the pres- 
ent is no safe time tc assert and enforce pretensions on the 
part of belligerent Powers atfecting the interest of nations 
at peace, unless such pretensions are clearly justified by the 
law of nations." * * * * "'I'he stopping of 
neutral vessels upon the high seas, their forcible entrance, 
and the overhauling and examination of their cargoes, the 
seizure of their freight, at thb will of a foreign officer, the 
frequent interruption of their ve)yages by compelling them 
to change their destination, in order to seek redress ; and, 
above all, the abuses which are so pi\one to accompany the ex- 
ercise of unlimited power, where re^jponsibility is remote; 
tliese are, indeed, serious obstructi</ns, little likely to be 
submitted to in the present state of tfie world without a 
formidable effort to prevent tiiem." 



Such is an authentic historyof this British pre- 
tension, and of the manner in which it has been 
met by our Government. And now the special 
argument formerly directed by us against thia 
pretension is directed by Great Britain against the 
pretension of Captain Wilkes to take two rebel 
emissaiies from a British packet ship. If Captain 
Wilkesis right in this pretension, then throughout 
all these international debates, extending over at 
least two generations, we have been wrong. 

But it has been sometimes said the steam packet 
having on board the rebel emissaries was on this 
account liable to capture, and therefore the error 
of Captain Wilkes in taking the emissaries was 
simply an error of form and not of substance. I 
do not stop to consider whether an exercise of 
summary power against which our Government 
has so constantly protested can be under any cir- 
cumstances an error merely of form, for the policy 
of our Government, most positively declared in 
its diplomacy, and also attested in nutnerous trea- 
ties, leaves no room to doubt that a neutral ship 
with belligerent passengers — not in the military or 
naval service — is not liable to capture, and there- 
fore the whole proceeding was wrong, not only 
because the passengers were taken from the ship, 
but also because the ship, howsoever guilty mor- 
ally, was not guilty legally in receiving such pas- 
sengers on board. If this question were argued 
on English authorities it might be otherwise; but 
according to American principles the ship was 
legally innocent. Of course, I say nothing of the 
moral guilt which an indignant patriotism will find 
forever indelible in that ship. 

In the middle of the last century, the Swiss 
professorVattel declared that on the breaking out 
of war we cease to be under any obligation of 
leaving the enemy to the free enjoyment of his 
rights; and this piinciple he applied loosely to the 
transit of embassadors. (Vattel, book 4, cap. 7, 
sec. 85.) Sir William Scott, afterwards known in 
the peerage as Lord Stowell, quoting this author- 
ity, at the beginning of the present century, let 
fall these words: 

" The belligerent may stop the embassador of the enemy 
on his passage." — The Jilalanta, 6 Robinson R., p. 440. 

And this curt proposition, though in some respects 
indefinite, has been often repeated since by writera 
on the law of nations. On its fact? it leaves the ques- 
tion unsettled, whether the emissaries of an unrec- 
ognized government can be stopped.' But there 
is another case in which the same British judge, 
who has done so much to illustrate international 
law, has used language which seems to embrace 
not only authentic embassadors but also pretend- 
ers to this character, and all others who are public 
agents of the enemy. Says this eminent magis- 
trate: 

" It appears to ine on principle to be but reasonable tha 
whenever it is of sufficient importance to the enemy that 
such persons should he sent out on the public service and at 
the public expense, it should afford equal ground of forfeit- 
ure against tlie vessel that may be let out for a purpose so 
intimately connected with hostile operations." — The Oro- 
zembo, 6 Robinson R., p. 434. 

Admit that the emissaries of an unrecognized 
government cannot be recognized :?<« e-ibassadors 
with the liabilities as well as immunities of this 



9 



character, yet, in the face of these words, it is dif- 
ficult to see how a Government bowing habitually 
to the authority of Sir William Scott, and regard- 
ing our rebels as " belligerents, "can assert that a 
steam packet, conveying emissaries from these 
belligerents, "sent out on the public service and 
at the public expense," was, according to the lan- 
guage of Lord Russell, "pursuing a lawful and 
innocent voyage." At least, in this assertion, 
this Government seems to turn its back again upon 
its own history, or it sets aside the facts so openly 
boasted with regard to the public character of 
these fugitives. 

On this question British policy may change with 
circumstances, and British precedents may be un- 
certain, but the original American policy is un- 
changeable, and the American precedents which 
illustrate it are solemn treaties. The words of 
Vattel, and the judgments of Sir William Scott, 
were well known to the statesmen of the United 
States; and yet, in the face of these authorities, 
which have entered so largely into this debate, the 
American Go vernment at an early day deliberately 
adopted a contrary policy, to which, for half a 
century, it has steadily adhered. It was plainly 
declared that only soldiers or officers could be stopped, 
thus positively excluding the idea of stopping em- 
bassadors, or emissaries of any kind, not in the 
military or naval service. Mr. Madison, who 
more than any other person shaped our national 
policy on maritime rights, has stated it on this 
question. In hisremarkable dispatch toMr. Mon- 
roe, at London, dated January 5, 1804, he says: 

"The article renounces tlie claim to take fVoin the ves- 
sels of the neutral party, on the high seas, any person what- 
ever not in the military service of an enemy, an exception 
which we admit to come within the law of nations, on the 
subject of contraband of war. TFitli tliis exception, we con- 
sider a neutral fias; on tlie hizh seas as a safcgxiard to those 
sailing under it.-' — State Papers, vol. 3, p. 83. 

Then again, in the same dispatch, Mr. Madison 
says: 

'Great Britain, then, must produce an exception in the 
law of nations in favor of tlie right she contends for. In 
what written and received authority will she find it.' In 
what usage, except her own, will it be found ?" * * 
* * " But nowhere will she find an exception to this 
freedom of the seas and of neutral flags, which justifies the 
taking away of any person, 7wt an enemy in military ser- 
vice, found on board a neutral vessel." — Ibid., p. 81. 

And then, again, in the same dispatch, he says: 

" Whenever a belligerent claim against persons on board 
a neutral vessel is referred to in treaties, enemies in mili- 
tary service alone arc excepted from the general immunity 
of persons in that situation ; and this exception confirms the 
immunity of those who arc not iricludcd in it." — Ibid., p. 84. 

It was in pursuance of this principle, thus 
clearly announced and repeated, that Mr. Madi- 
son instructed Mr. Monroe to propose a conven- 
tion between the United States and Great Britain, 
containing the following stipulation: 

" No person whatever shall, upon the high seas and with- 
out the jurisdiction of either parly, be demanded or taken 
out of any ship or vessel belonging to cili/.ens or subjects 
of one of the parties, by the public or private armed ships 
belonging to or in the service of the other, ntilcss such per- 
son he at the time in the military service of an enemy of such 
other party. ^' — Ibid., p. 83. 

Mr. Monroe pressed this stipulation most earn- 



estly upon the British Government; but though 
treated courteously, he could get no satisfaction 
with regard to it. Lord Harrowby, the Foreign 
Secretary, in one of his conversations, "expres.sed 
a concern to find the United States opposed to 
Great Britain on certain great neutral questions 
in favor of the doctrines of the modern law, which 
he termed noveUies." (State Papers, vol. 3, )). 
99.J And Lord Mulgrave, who succeeded this 
accomplished nobleman, persevered in the same 
dissent. Mr. Monroe writes, under dale of 18th 
October, 1805: 

" On a review of the conduct of this Government towards 
the United States, I am inclined to thhik that the delay 
wliicli has been so studiously sought is part of a system, and 
that it is intended, as circumstances favor, to subject our 
commerce at present and hereafter to every restraint in 
their power." — State Papers, vol. 3, p. 107. 

Afterwards Mr. Monroe was joined, as we have 
already seen, by Mr. Pinkney'in the mission to 
London, and the two united in presenting this 
same proposition again to the British Govern- 
ment. (State Papers, vol. 3, p. 137.) It was re- 
jected, although the ministry of Mr. Fox, who 
was then in power, seems to have afforded at one 
time the expectation of an agreement. 

While these distinguished plenipotentiaries were 
pressing this principle at London, Mr. Madison 
was maintaining it at home. In an unpublished 
communication to Mr. Merry, the British minis- 
ter at Washington, bearing date 9th April, 1805, 
which 1 extract from the fites of the State Depart- 
ment, he declared: 

" The United States cannot accede to the claim of any 
nation to take from their vessels on the high seas any dc 
scription of persons, except soldiers in the actual service of 
the enemy." 

In a reply, bearing date 12th April, 1805, this 
principle was positively repudiated by the Brit- 
ish minister; so that the two Governments were 
ranged unequivocally on opposite sides. And this 
attitude of the two Governments was continued. 
In the subsequent negotiations at London — in- 
trusted to Mr. Rush— in 1818, we find the two 
Powers face to face. The foreign secretary was 
the celebrated Lord Castlereagh, who, according 
to Mr. Rush, did not hesitate to complain — 

"That we gave to our ships a character of inviolability 
that Great Britain did not ; that we considered them as par' 
of the soil, clothing them with like immunities."— RitsA's 
Residence at the Court of London. 

To which Mr. Rush replied: 

" That we did consider them as thus inviolable, so fara*"' 
to afford protection to our seamen ; but that we had ne-'<" 
sought to exempt them from search for rightful purpi'-'SC'') 
viz: for enemy's property, articles contraband of wr^ «' 
men in the land or naval service of the enemy. Th '<' '^'"^ 
stitutcd the utmost limit of the belligerent claim, as <^<^ " '^^- 
stood the law of nations." — Ibid. 

Two champions were never more completely 
opposed than. were the two Govern>eni.s on this 
question. • 

The treaties of the United Stfi^tes with foreign 
nationsare in harmony with thi^ Priri' iplesoener- 
geticallyproposedandupheld I ■v.'Ui Government; 
beginning with the treaty > .--M.,ierce with France 
in 1778, and ending only v .iK il treaty with Peru 
in 1851. Here is the ir jvisioa in the treaty with 



ID 



France, negotiated by Benjamin Franklin, whose 
wise forethought is always conspicuous: 

"And it is liereby stipulated that free sliips sliall also 
give a I'leedoiii to goods, and that everythingshall be deemed 
to he free and exempt which shall be found on board the 
slnps belonging to the subjects of either of the confederates, 
although tlie whole lading or any part thereof should ap- 
pertain to the enemies of either, contraband goods being 
always excepted. It is also agreed in like manner that the 
same liberty he extended to persons who are on board a free 
ship, with iliis eflect, that although they be enemies to Coth 
or either party, they are not to he taken out of that free ship, 
unless they arc soldiers in actual senice of the enemies."^ 
Statutes at Large, vol. 8, p. 26. 

The obvious effect of this stipulation is two-fold: 
first, tliat enemies, unless soldiers in actual ser- 
vice, shall not be taken out of a neutral ship; and 
secondly, that such persons are not contraband 
of war so as to affect the voyage of a neutral with 
illegality. Such was the proposition of Frank- 
lin, of whom it has been said, thathe snatched the 
lightning from the skies, and the scepter from the 
tyrant. That he sought to snatch the tridentalso is 
attested by his whole diplomacy, of which this 
proposition is a part. But the same principle will 
bu found in succeeding treaties, sometimes with a 
slight change of language. In the treaty with the 
Netherlands, negotiated by John Adams in 1782, 
the exception is confined to " niilitary men actually 
in the service of an enemy," {Ibid., p. 38;) and 
this same exception will also be found in the treaty 
with Sweden, in 1782, (76«/., p.64;) with Prussia, 
in 1785, {Ibid., p. 90;) with Spain, in 179.i, (ifiirf., 
p. 14(j;) with France, in 1800, {Ibid., p. 184;) with 
Columbia, in 1824, {Ibid., p. 312;) with Central 
America, in 1825, {Ibid., p. 328;) with Brazil, in 
1828, (/6t(Z.,p.393;) with Mexico, in 18.31, (/6i(Z., 
p. 41G;) with Chili, in 1832, {Ibid., p. 43(J;) with 
Venezuela, in 1836, {Ibid., p. 472;) with Peru- 
Bolivia, in 1836, {Ibid., p. 490;) with Ecuador, in 
1639, {Ibid., p. 540;) with New Granada, in 1846, 
(Statutes, vol. 9, p. 888;) with Guatemala, in 
1849, (Statutes, vol. 110, p. 880;) with San Salva- 
dor, in 1850, (/6i(L,p.894;) and in the treaty with 
Peru,inl851,(y6j(Z.,p.936.) Such istheunbroken 
testimony, in the most solemn form, to the policy of 
our Government. In some of the treaties the ex- 
ception is simply " soldiers," in others itis "ofii- 
cers or soldiers." Do not forget that every treaty 
testifies to the opinions of the Administration that 
negotiated it, andof at least two thirds of the Sen- 
ate that ratified it — so that this large number of 
treaties constitutes a mass ofauthority from which 
there can be no appeal, embracing all the great 
'tames of our history. It is true that among these 
treaties there is none with Great Britain; but it is 
al^o true that this is simply because this Power 
refused its assent when this princi]ile was pre- 
sented hy our Government as an undoubted part 
of international law which it desired to confirm 
by treaty. 

Clearly and beyond all question, according to 
Americ.^i principles and practice, the ship was 
not liable to capture on account of the presence of 
emissaries, " not .soldiers or officers;" nor could 
such emissaries be lejjally taken from theship. But 
thecompletenessof tf.us authorityis increased by 
the concurring testimo.ny of the continent of Eu- 
rope. Since the peace of Utrecht, in 1713, the pol- 



icy of the continental States has generally refused 
to sanction the removal of enemies from a neutral 
ship, unless military men in actual service. And 
now, since this debate has commenced, we have 
the positive testiinony of the French Government 
to the same principle, given with special reference 
to the present case. M.Thouvenel, the Minister 
of the Emperor for Foreign Affairs, in a recent 
letter communicated to Mr. Seward, and published 
with the papers now before the Senate, earnestly 
insists that the rebel emissaries, not being military 
persons actually in the service of the enemy, were 
not subject to seizure on board a neutral ship. I 
leave this question with the remark that it is per- 
haps Great Britain alone whose position on it can 
be brought into doubt. Originally a party to the 
treaty of Utrecht, this imperial Power soon saw 
that its provisions in favor of maritime rights inter- 
fered plainly with thatdictatorshij) of the sea which 
she was then grasping. Maritime rights were re- 
pudiated, and her admiralty courts have ever since 
enforced this early repudiation. 

But still another question occurs. Beyond all 
doubt, there were " dispatches" frotn the rebel 
belligerentson board theship — such " dispatches" 
as rebels can write. Public report, the statement 
of person's on board the ship, and the boastful 
declaration of Jefferson Davis in a public docu- 
ment, that these emissaries were proceeding under 
an appointment from him — which appointment 
would be a " dispatch" of the highest character — 
seem to place this fact beyond denial. Assuming 
this fact, the ship was liable to capture and to 
be carried off for adjudication, according to Brit- 
ish authorities — unless the positive judgment of 
Sir William Scott in the case of the Atalanta, (6 
Robinson 11., p. 440,) and also the dueen's proc- 
lamation at the commencement of this rebellion, 
where " dispatches" are enumerated among con- 
traband articles, are treated as nullities, or so far 
modified in their application as to be words, and 
nothing more. But however binding and peremp- 
tory these authorities may be in Great Britain, 
they cannot be accepted to reverse the standing 
policy of the United States, which here again 
leaves no room for doubt. In order to give pre- 
cision to the rights which it claimed and at the 
same time accorded on the ocean, our Government 
has sought to explain in treaties what it meant by 
contraband. As early as 1778, in the treaty with 
France, negotiated by Benjamin Franklin, after 
specifying contrabanJ articles, without including 
dispatches, it is declared that 

" Free goods are all other merchandise and things which 
are not compiehended and particularly mentioned in the 
foregoing enumeration of contraband goods.*' — Statutes at 
Large, vol. 8, p. 26. 

This was before the judgment of Sir William 
Scott, recognizing dispatches as contraband; but 
in other treaties subsequent to this well known 
judgment, and therefore practically discarding it, 
after enumerating contraband articles, without 
specifying "dispatches," the following provision 
is introduced: 

" All other merchandises and //ij)i»s not comprehended 
in the articles of coiiti-abaiid explicitly enumerated and 
classified as above, shall be held and considered as free." — 
Ibid., p. 312; Treatywilh Columbia andlatcr treaties passim. 



11 



Thus we have not only positive words of enu- 
TYieration, without mentioning " dispatches," but 
also positive words of exclusion, so that dis- 
patchescannotbeconsideredas contraband. These 
treaties constitute the conclusive record of our 
Government on this question. And here let me 
remark, that, while decisions of British Admii-alty 
courts on all these matters are freely cited, no de- 
cisions of our Supreme Court are cited. Of course, 
if any existed, they would be of the highest value, 
but there are none, and the reason is obvious. 
These matters could notarise before our Supreme 
Court, because under our Government they are so 
clearly settled by treaties and diplomacy as to be 
beyond question. 

Clearly, then, and beyond all question, accord- 
ing to American principles and practice, the ship 
was not liable to capture on account of dispatches 
on board. And here again we have the concur- 
ring testimony of continental Europe, if we may 
accept the statement of Hautefeuille,and it would 
.seem also of the French Government, in the recent 
letter of M. Thouvenel. 

But there is yet another question which remains. 
Assuming that dispatches may be contraband, 
would their presence on board a neutral ship, 
sailing between two neutral ports, render the voy- 
age illegal ? The mail steamer was sailing between 
Havana, a port of Spain, and St. Thomas, a port 
of Denmark. Here again, if we bow to British 
precedent, the answer will be prom)it. The Brit- 
ish oracle has spoken. In a well-considered judg- 
ment. Sir William Scott declares that dispatches 
taken on board a neutral ship, sailing from a neu- 
tral country and bound for another neutral coun- 
try, are contraband; but that where there was 
reason to believe the master ignorant of their char- 
acter, " it is not a case in which the property is 
to be confiscated, although in this, as in every 
other instance in which the enemij^s dispatches are 
found on board a vessel, lie has justly subjected 
himself to all the inconveniences of seizure and 
detention, and to all the expenses of those judicial 
inquiries whicli they have occasioned." (The 
Rapid, Edwards's Rep., 221.) Such is the law of 
nations according to Great Britain. 

But even if this rule had not been positively 
repudiated by the United States, it is so inconsist- 
ent with reason, and, in the present condition of 
maritime commerce, so utterly impracticable, that 
. it can find little favor. If a neutral voyage be- 
tween two neutral ports is rendered illegal on this 
account, then the postal facilities of the world, and 
the costly enterprises by which they are conducted, 
will be exposed to interruptions under which they 
must at times be crushed, to the infinite damage 
of universal commerce. If the rule is applicable 
ill one sea, it is applicable in all seas, and there 
is HO part of the ocean which may not be vexed 
by its enforcement. It would reach to the Med- 
iterranean and to the distant China seas as easily 
as to the Bahama Straits, and it would be equally 
imperative in the chops of the British channel. 
Not only the stately mail steamers which traverse 
the ocean would be liable to detention and possible 
confiscation, but the same penalties must attach 
to the daily packets between Dover and Calais. 
The simple statement of such a consequence, fol- 



lowing directly from the British rule, throws an 
instant doubt over it which the eloquent judg- 
ment of Sir William Scott cannot remove. 

But here, again, our way is easy. American 
principles and practice have settled this question 
also. Wheaton commences his statement of the 
law of contraband by saying " the general free- 
dom of neutral commerce with the respective 
belligerent Powers is subject to some exception. 
Among these is the trade ivith the enemy in certain 
articles called contraband of war." (Wheaton's 
Elements, part 4, cap. 3.) It will be perceived 
that the trade must be with the enemy, not with the 
neutral. And here the author followed at once the 
suggestions of reason and the voice of American 
treaties. Even in the celebrated treaty with Great 
Britain, negotiated by John Jay in 1794, after an 
enumeration of contraband articles, it is expressly 
declared, "and all the above articles are hereby 
declared to be just objects of confiscation lohen- 
ever they arc attempted to he carried to an enemy." 
(Statutes, vol. 8, p. 125.) Of course when on the 
way to neutrals they are free; and the early trea- 
ties, negotiated by Benjamin Franklin and John 
Adams, are in similar spirit; and in precisely the 
same sense is the treaty with Prussia, in jl828, 
whicli, in its twelfth article, revives the tbirt^YMith 
article of our treaty with that same Power in 1789^,"' 
by which contraband is declared to be detainable 
only lohen carried to an enemy. Even if this rule 
were of doubtful authority with regard to articles 
of acknowledged contraband, it i^ positive with 
regard to dispatches, which, as we have already 
seen, are among " merchandises and things" de- 
clared to be free; with regard to which our early 
treaties secured the greatest latitude. Nothing can 
be broader than these words in the treaty of 1778 
with France: 

" So tliat tlioy may be transported and carried in the freest 
manner even to places l)eloii!;iiig to an enemy, such towns 
or places being only excepted as are at tlie time besieged, 
blocked up, or invested." — Statutes, vol. 8, p. 26. 

But the provision in the treaty with the Nether- 
lands of 1782 is equally broad: 

" So that all effects and merchandises which are not ex- 
pressly belore uampdmay, without any exception and in per- 
fect liberty, be transported by the subjects and inliabilants 
of both al'lies from and to places belonging to tlie enemy, 
excepting only the places which at the time shall be be- 
sieged, blocked, or invested; and tliose places only shal! 
be held for such vi'hich are surrounded nearly by some o'' 
the belligerent Powers."— Statutes, vol. 8, p. 46. 

If the immunity of neutral ships needed further 
confirmation, it would be found again in tin- eon 
curring testimony of the French Governivierit — 
conveyed in the recent letter of M. TIioua'i. iil — 
which is so remarkable for its brief inv c'vapre- 
hensive treatment of all the questions nvvc.lved in 
this controversy. I know nothow otl.. is may teel, 
but I cannotdouin that this comianin :uion, when 
rightly understood, will be grntri'ily accepted 
as a token of friendship for us, and also as a con- 
tribution to those maritime ri.<;liis tor which France 
and the United States, in tinit ; past, have done so 
much together. This eminent minister does not 
hesitate to declare that if the flag of a neutral can- 
not completely cover persons and merchandise 
beneath it in a voyi'go between two neutral ports, 
then its immunity will be but a vain word. 



12 



And now, as I conclude what I have to say on 
contrabiuid in its several divisions, I venture to 
assert that there are two rules iti regard to it, 
which tiie traditional policy of our country has 
constantly declared, and which it has embodied in 
treaty stipulations with every Power which could 
be persuaded to adopt them: First, that no article 
shall be contraband unless it beexpressly enumer- 
ated and specified as such by name. Secondly, 
that when such articles, so enumerated and speci- 
fied, shall be found by the belligerent on board a 
neutral ship, the neutral shall be permitted to de- 
liver them to the belligerent whenever, by reason 
of their buUc or quantity, sue !i deli very may be pos- 
sible, and then the neutral shall, without further 
molestation, proceed with all remaining innocent 
cargo to his destination, being any port, neutral or 
hostile, which atthe time is notactually blockaded. 

Such was the early fixed policy of our country 
with regard to contraband in neutral liottoms. It 
is recorded in several of our earlier European 
treaties. Approximation to it will be found in 
other European treaties, showing our constant 
effort 1^1 this direction. But this policy was not 
supported by the British theory and practice of 
intenjational law, which was especially active 
duri,Mg the wars of the French Revolution; and 
t-e-this f;\ct may, perhaps, be ascribed something 
of the difficulty which our Government encoun- 
tered in its efforts to secure for this liberal policy 
the complete sanction of European States. But 
in our negotiations with the Spanish-American 
States the theory and practice of Great Britain 
were less felt; and so to-day that liberal policy, em- 
bracing the two rules already stated touching con- 
traband, is among all American States the public 
law of contraband, stipulated and fixed in solemn 
treaties. I do not quote their texts, but I refer 
to all these treaties, beginning with the convention 
between the United States and Columbia in 1824. 
These rules, if not directly conclusive on the ques- 
tion of contraband in tlie present controversy, at 
least help to exhibit that spirit of emancipation 
with which our country has approached the great 
subject of Maritime Rights. 

Of coarse this whole discussion proceeds on the 
assumption that the rebels are to be regarded as 
belligerents, which is the character already ac- 
corded to them by Great Britain. If they are not 
regarded as belligerents, then the proceeding of 
Captain AVilkcs is indubitably illegal and void. 
To a political offender, however deep his guilt — 
thou'gh burdened with the vmdying execrations 
of all honest men, and bending beneath the con- 
sciousness of the ruin which he has brought upon 
his country — the asylum ofa foreign jurisdiction is 
sacred, whether on shoreoron sea;and itisamong 
the proudest boasts of England, at least in recent 
days, that the exiles of defeated democracies as 
well as of defeated dynasties have found a sure 
protection beneath her meteor flag. And yet this 
Powerhas not always accorded to otherflags what 
she claimed for her own. One of the objections 
diplomatically presented by Great Britain at the 
beginning of the present century to any renunci- 
ation of the pretension of impressment, was " that 
facility would be given, particularly in the British 
Channel, by the immunity claimed by American 



vessels, to the escape of traitors," (St&ie Papers, vol. 
3, p. 86,) thus assuming that traitors — the com- 
panions of Robert Emniett, in Ireland, or the com- 
panions of Home Took, in England — ought to be 
arrested on board a neutral ship; but that the arrest 
could be accomplished only through thepretension 
of impressment. But this flagrant instance cannot 
be a precedent for the United States, which has al- 
ways maintained the right of asylum as firmly as 
it has rejected the pretension of impressment. 

If I am correct in this review then the conclu- 
sion is inevitable. The seizure of the rebel em- 
issaries on board a neutral ship cannot be justified 
according to our best American precedents and 
practice. There seems to be no single point where 
the seizure is not questionable, unless we choose 
to invoke British precedents and practice, which 
beyond doubt led Captain Wilkes into the mis- 
take which he committed. In the solitude of his 
ship he consulted familiar authorities at hand, 
and felt that in following Vattel and Sir William 
Scott, as quoted and affirmed by eminent writers, 
reinforced by the inveterate practice of the British 
navy, he could not err. He was mistaken. There 
was a better example; it was the constant, uni- 
form, unhesitating practice of his own country on 
the ocean, conceding always the greatest immu- 
nities to neutral ships, unless sailing to blockaded 
ports — refusing to consider dispatches as contra- 
band of war — refusing to consider persons, other 
than soldiers or officers, as contraband of war; and 
protesting always against an adjudication of per- 
sonal rights by the summary judgment of a quar- 
ter-deck. Had these well-attested precedents been 
in his mind, the gallant captain would not, even 
for a moment, have been seduced from his allegi- 
ance to those principles which constitute a part of 
our country's glory. 

Mr. President, let the rebels go. Two wicked 
men, ungrateful to their country, are let loose with 
the brand of Cain upon their foreheads. Prison 
doors are opened; but principles are established 
which will help to free other men, and to open 
the gates of the sea. Never before in her active 
history has Great Britain ranged herself on this 
side. Such an event is an epoch, ^'ovns swclo- 
rum nascitiir ordo. To the liberties of the sea 
this Power is now committed. To a certain extent 
this cause is now under her tutelary care. If the 
immunities of passengers, not in the military or 
naval service, as well asof sailors, are not directly 
recognized, they are at least implied; if neutral 
rights are not ostentatiously proclaimed, they are 
at least invoked; while the whole pretension of 
impressment, so long the pest of neutral com- 
merce, and operating only through the lawless ad- 
judication of a quarter-deck, is made absolutely 
impossible. Thus is the freedom of the sea en- 
larged, in the name of peaceful neutral rights, not 
only by limiting the number of persons who are 
exposed to the penalties of war, but by driving 
from it the most offensive pretension that ever 
stallced upon its waves. To such conclusion Great 
Britain is irrevocably pledged. Nor treaty nor 
bond was needed. It is sufficient that her late 
appeal can be vindicated only by a renunciation 
of early, long-continued tyranny. Let her bear 
the rebels back. The consideration is ample; for 



13 



the sea became free as this altered Power went 
forth upon it, steering westward with the sun, on 
an errand of liberation. 

In this surrender, if such it may be called, our 
Government does not even " stoop to conquer." 
It simply lifts itself to the heightof its own original 
priiici|iles. The early eff'orts of its best negotia- 
tors — the patriot trials of its soldiers in an un- 
equal war — have at length prevailed, and Great 
Britain, usually so Iiauglity, invites us to prac- 
tice upon tliose princijiles which she has so stren- 
uously opposed. There are victories of force. 
Here is a victory of truth. If Great Britain has 
gained the custody of two rebels, the United 
States havesecured the triumph of their principles. 

If this result be in conformity with our cher- 
ished principles, it will be superfluous to add other 
considerations; and yet I venture to suggest that 
estranged sympathies abroad may be secured 
again by an open adhesion to those principles, 
which already have the support of the Continental 
Governments of Europe, smarting for years under 
British pretensions. The powerful organs of pub- 
lic opinion on the Continent are also with us. 
Hautcfeuille, whose work on the Law of Nations 
is the arsenal of neutral rights, has entered into this 
debate with a direct proposition for the release of 
these emissaries as a testimony to the true inter- 
pretation of international law. Another distin- 
guished Frenchman, Agenor de Gasparin, whose 
impassioned love of liberty and enlightened devo- 
tion to our country give to his voice all the per- 
suasion of friendship, has made a similar appeal. 
And a journal, whicliof itself is an authority, the 
Revue dcs Deux JSIondes, hopes that the United 
States will let tiie rebels go, simjily because "it 
would be a triumph of the rights of neutrals to ap- 
ply them for the advantage of a nation which has 
ever opposed and violated them." 

But this triumph is not enough. The sea-god 
will in future use his trident less; but the same 
principles which led to the present renunciation 
of early pretensions, naturally conduct to yet 
further emancipation of the sea. The work of 
maritime civilization is not finished. And here 
the two nations, equally endowed by commerce, 
and matching each other, while they surpass all 
other nations, in peaceful ships, may gloriously 
unite in setting up new pillars, which shall mark 
new triumphs, rendering the ocean a higliway of 
peace, instead of a field of blood. 

The congress of Paris, in 185G, where were 
assembled the plenipotentiaries of Great Britain, 
France, Austria, Prussia, Russia, Sardinia, and 
Turkey, has already led the way. Adopting the 
early policy of the United Slates, often proposed 
to foreign nations, this congress has authenticated 
two imjiortant changes in restraint of belligerent 
rights; first, that the neutral flag shall protect 
enemy's goods except contraband of war, and 
secondly, that neutral goods, except contraband 
of war, are not liable to capture under an enemy's 
flag. Tliis is much. Another proposition, that 
privateering should be abolislied, was defective 
in two respects; first, because it left nations free 
to employ ])rivate ships under a public commis- 
sion as ships of the navy, and, therefore, was 
nugatory; and, secondly, because if not nugatory, 
it was loo obviously in the special interest of 
Great Britain, which, through her commanding 



navy, would thus be left at will to rule the sea. 
No change can be practicable which is not equal 
in its advantages to all nations; for the Equality of 
Nations is not merely a dry dogma of international 
law, but a vital national sentiment common to all 
nations. This cannot be forgotten; and every 
proposition must be brought sincerely to this 
equitable test. 

But there is a way in which privateering can 
be elTectively abolished without any shock to the 
Equality of Nations. A simple proposition, that 
private property sludl enjoy the same immunity 
on the ocean which it now enjoys on land, will 
at once abolish privateering, and relieve the com- 
merce of the ocean from its greatest perils, so 
that, like commerce on land, it shall be undis- 
turbed except by illegal robbery and theft. Such 
a proposition will operate equally for the advan- 
tage of all nations. On this account, and in the 
policy of peace, which our Govern men I has always 
cultivated, it has been already presented to for- 
eign Governments by the United States. You 
have not forgotten the important paper in which 
Mr. Marcy did this service, or the recent efforts 
of Mr. Seward in tiie same direction. In order 
to complete the efficacy of this proposition, and 
still further to banish belligerent pretensions, con- 
traband of war should be abolished, so that all 
ships may freely navigate the ocean without being 
exposed to any question as to the character of 
persons or things on board. The Right of Search, 
which, on the occurrence of war, becomes an om- 
nipresent tyranny, subjecting every neutral ship 
to the arbitrary invasion of every belligerent 
cruiser, would then disappear. It would drop, as 
the chains drc>p from an emancipated slave; or 
rather it would oidy exist as an occasional agent, 
under solemn treaties, in the war waged by civil- 
ization against the slave trade; and then it would 
be proudly recognized as an honorable surrendr 
to the best interests of humanity, glorifying the 
flag which made it. 

With the consummation of these reforms in 
maritime law, not forgetting blockades under in- 
ternational law, war would be despoiled of its most 
vexatious prerogatives, while innocent neutrals 
would be exempt from its torments. The statutes 
of the sea, thus refined and elevated, will be the 
agentsof peace instead of the agi-nts of v/ar. Ships 
and cargoes will pass unchallenged from shore to 
shore; and those terrible belligerent rights, under 
which the commerce of the world has so long suf- 
fered, will cease from troubling. In this work our 
country began early. It had hardly proclaimed 
its own independence before it sought to secure a 
similar independence for the sea. It had hardly 
made a Consiitution for its own Government be- 
fore it sought to establish a constitution similar in 
spirit for the government of the sea. If it did not 
prevail at once, it was because it could not over- 
come the unyielding opposition of Gri^it Britain. 
And now the time is come when thi.s champion of 
belligerent rights "has changed his tiand and 
checked his pride." Welcome to tins new-found 
alliance. Welcome to this peaceful transfigura- 
tion. Meanwhile, throughout ail present excite- 
ments, amidst all present trial.-*, beneath all threat- 
ening clouds, it only remains for us to uphold the 
perpetual policy of the Republic, and to sland fast 
on tiie ancient ways. 



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